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<br />02~~e important, haer, than the actual effects fin any instream <br />flow llBintenance re::;uirenents l"ould be the establishment and inevitable <br />expan"sion of a new doctrine for acquiring federal water rights outside <br />the state systans for purposes not yet recognized. in I al<" . <br /> <br />( <br /> <br />--....,,-~~ <br /> <br />It is noted that the discussion in the Task Force report suggests <br />following state appropriation procedures where state law recognizes the <br />proposed federal water use as beneficial. No indication is nade, <br />however, that the 'fask Force views this as anything more than a mere <br />courtesy to the states. It may be wondered whether a federal agency <br />having had its application for a water permit appropriately denied under <br />state law would thereafter proceed to exercise its use of the water <br />outside the provisions of state water law. <br /> <br />( <br /> <br />The Task Force identifies three alternatives available to a federal <br />agency in states which do not recognize instream flows as a beneficial <br />use. These alternatives are in effect to (1) ignore the congressional <br />directive to manage the lam. in part for instream uses, or (2) establish <br />or claim a \.mter right outside the provisions of state law, or (3) seek <br />to create a 1an:i reservation with an accanpanying reserved water right; <br />Absent fran the list is an obvious fourth alternative. It is, sirrply, <br />that the agency Il'anage the federal land in part for congressionally- <br />authorized instream flow uses without claiming a proprietary or an <br />appropriative right to the instream flow. Frequently, the stream flOl-lS <br />to be Il'anaged will flow through federal lands located upstrealll fran any <br />private developnent. This factor, together with the fact that dO\fflstream <br />flows may be fully appropriated, should minimize interferpJlce with the <br />federal management objectives. <br /> <br />Finally, a few practical questions may be raised in response to the <br />discussion in the Task Force report. How, for example, will it be <br />detE!l.1nined when an agency begins "actual use" of a min:inlum stream flow <br />for a congressionally-established management objective? Is it the date <br />of cbngressional action, the date of notification or application to the <br />state, or, the date the first fish is planted, or the first float trip <br />is . licensed? <br /> <br />In conclusion, it may be stated that to the extent that recom- <br />nendation ntm1ber 5 suggests that the United States may appropriate non- <br />reserved waters outside the provisions of state procedural and substantive <br />law, it is not acceptable. To the extent that the reCXI\1lTenc1ation urges <br />federal a:rnpliance with the provisions of state law in appropriating <br />non-reserved water rights, it is to be camended. <br /> <br />6. The first sentence of reccmnerrlaton number 6 directing <br />federal agencies to give notification to states concerning the identifying <br />and quantity of their claimed reserved rights should I:e encouraged and <br />applaudeJ.. The planni.n:J functions of state water administrators <br />have long been hampered by the elenent of uncertainty which is generated <br />by the existence of unquantified reserved water rights. <br /> <br />( <br /> <br />The Task Force report suggests that upon notification of the <br />reserved rights claimed by the United States, each state should <br />"incorporate" such rights into its water law systan. The procedure for <br /> <br />-7- <br /> <br />..~..,. --.-.....-_. ,--- <br /> <br />. ...---------....-.------.. ---"--' - .~- <br />